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District Court 31 August 2021

R v Tisserand

[2021] NSWDC 543

Assault & violenceDomestic & family violencePublic order & justice offences

Citation: R v Tisserand [2021] NSWDC 543
Court: District Court of New South Wales
Date: 31 August 2021
Judge: Bennett SC DCJ

Background

The offender pleaded guilty in the District Court to using an offensive instrument (petrol) with intent to commit intimidation against his domestic partner, contrary to s 33B(1)(a) of the Crimes Act 1900. The offending occurred on 11 October 2019 at Kingsgrove, where the offender and victim were in a relationship and lived together with the victim's two young sons.

At the time of the offending, an apprehended violence order (AVO) was in place protecting the victim, and the offender was also subject to an intensive corrections order arising from earlier misconduct involving the same victim. His arrest for the present offences led to immediate revocation of that intensive corrections order and his entry into full-time custody.

The sentencing proceedings addressed three matters: the principal offence of using a dangerous implement to intimidate, a related charge of contravening the AVO, and a Form 1 offence of assault occasioning actual bodily harm arising from the same events.

  • What guilty plea discount applied to each offence, given the timing of the pleas?
  • How should pre-sentence custody be calculated, particularly where the offender had served time under a revoked intensive corrections order connected to the same victim?
  • Was a further intensive corrections order an appropriate sentencing option?
  • What aggregate sentence, including non-parole period, was appropriate given the totality of the offending?
  • What weight should the court give to unsworn, untested representations made by the offender to a psychiatrist?

Decision

Guilty plea discounts: The plea to the principal offence was not entered at the first opportunity, but was entered close to trial following negotiations. The court applied a 10% discount under s 25D(2)(b)(ii) of the Crimes (Sentencing Procedure) Act 1999. The AVO contravention offence was introduced later and pleaded at the first available opportunity, attracting a 25% discount.

Form 1 offence: The assault occasioning actual bodily harm offence was taken into account on the Form 1 pursuant to the guidance in Attorney General's Application No 1 of 2002. The court increased the principal sentence to reflect the additional weight required for personal deterrence and community retribution flowing from the full extent of the offending.

Pre-sentence custody and commencement date: The court held it had a discretion, drawing on Callaghan v R, over when to commence the aggregate sentence. It declined to backdate to the revocation of the intensive corrections order or to the date that order expired, noting the need to account for the totality of the offender's conduct, including that the intensive corrections order itself arose from misconduct against the same victim. The aggregate sentence was ordered to commence on 12 October 2020, a date in the middle of the period of custody referable to the revoked order.

Unsworn representations: The offender did not give evidence. The court applied the caution required by R v Qutami and Imbornone v R when weighing factual matters drawn from out-of-court statements to a psychiatrist, particularly where those statements were inconsistent with the agreed facts. The court acknowledged the offender's background, including a serious head injury in childhood, brutal domestic punishment, and resulting psychiatric effects, but weighed these carefully against the surrounding evidence.

Full-time custody: The court rejected the submission that a further intensive corrections order was appropriate, accepting the Crown's position. The fact that the same victim was the subject of the present prosecution was a significant factor in that conclusion.

Orders Made

  • Aggregate sentence of 4 years and 3 months imprisonment, commencing 12 October 2020.
  • Non-parole period of 2 years, expiring 11 October 2022.
  • Parole period of 2 years and 3 months, with the head sentence expiring 11 January 2025.
  • Indicative sentence for the offensive implement/intimidation offence: 4 years (after 10% discount).
  • Indicative sentence for contravening the AVO: 1 year (after 25% discount).
  • Special circumstances found, justifying the extended parole period.
  • Form 1 offence (assault occasioning actual bodily harm) certified as taken into account.

Key Takeaways

  • The District Court confirmed that a discretion exists over the commencement date of a sentence imposed after an intensive corrections order has been revoked, and that this discretion is not confined to parole revocation scenarios. The appropriate start date will depend on the totality of the offender's conduct and the connection between earlier and later offending.

  • Where an intensive corrections order was imposed for misconduct against the same victim as the subsequent offending, a sentencing court may decline to backdate the new sentence fully to the date of revocation, treating part of the earlier custodial period as referable to the prior offences.

  • A guilty plea entered late, proximate to trial and following negotiations, attracted only a 10% discount under s 25D(2)(b)(ii) of the Crimes (Sentencing Procedure) Act 1999, rather than the 25% available for a plea at first opportunity.

  • Considerable caution is required when assessing unsworn representations made by an offender to a psychiatrist, particularly where the offender does not give evidence and the representations are inconsistent with the agreed statement of facts (affirmed in R v Qutami and Imbornone v R).

  • The involvement of the same victim in both the prior intensive corrections order and the subsequent offending was a material factor against the imposition of a further community-based order.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33B(1)(a), 59(1)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25D(2)(b)(ii), Part 4 Div 1A, s 37

Cases:
- Attorney General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518
- Bugmy v The Queen [2013] HCA 37
- Callaghan v R [2006] NSWCCA 58
- Imbornone v R [2017] NSWCCA 144
- Muldrock v The Queen [2011] HCA 39
- R v De Simone (1991) 147 CLR 383
- R v Greene [2001] NSWCCA 258
- R v Qutami [2001] NSWCCA 353
- Tepania v R [2018] NSWCCA 247
- Veen v R (No 2) [1988] HCA 14